[Cite as Midfirst Bank v. Wallace, 2014-Ohio-4525.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

MIDFIRST BANK, : 

 Plaintiff-Appellee, : CASE NO. CA2013-12-122 

 

 : O P I N I O N

 - vs - 10/13/2014 

 : 

MARY E. WALLACE, et al., : 

 Defendants-Appellants. : 

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 13 CV 83810 

Manley Deas Kochalski LLC, Angela D. Kirk, Kevin L. Williams, Matthew P. Curry, P.O. Box 

165028, Columbus, Ohio 43216-5028, for plaintiff-appellee 

Pamela L. Pinchot, Penick & Deters Bldg., 1800 Lyons Road, Dayton, Ohio 45458, for 

defendant-appellant, Mary E. Wallace 

Dale A. Stalf, 600 Vine Street, Suite 2500, Cincinnati, Ohio 45202, for defendant-appellant, 

Outdoor Environments, Inc. 

H. Toby Schisler, 255 East Fifth Street, Suite 1900, Cincinnati, Ohio 45202, for defendantappellant, New Tech Drywall, LLC 

Daniel E. Izenson, One East Fourth Street, Suite 1400, Cincinnati, Ohio 45202, for 

defendant-appellant, C2 IT, LLC d.b.a. Nelson Comfort 

Joseph T. Chapman, 150 East Gay Street, 21st Floor, Columbus, Ohio 43215, for defendantappellant, state of Ohio 

David P. Fornshell, Warren County Prosecuting Attorney, Christopher A. Watkins, 500 

Justice Drive, Lebanon, Ohio 45036, for defendant-appellant, Jim Aumann, Warren County 

Treasurer 
Warren CA2013-12-122

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C. Edward Noe, 810 Sycamore Street, 4th Floor, Cincinnati, Ohio 45202, for defendant, 

MedMart 

 RINGLAND, P.J.

{¶ 1} Defendant-appellant, Mary E. Wallace, appeals from the decision of the Warren 

County Court of Common Pleas granting summary judgment to plaintiff-appellee, MidFirst 

Bank. 

{¶ 2} MidFirst Bank filed a foreclosure complaint alleging that Wallace had defaulted 

on a mortgage and promissory note that was executed by Wallace and her now-deceased 

husband. 

{¶ 3} MidFirst Bank subsequently filed a motion for summary judgment, supported by 

the affidavit of Matt Kinders. Kinders' affidavit included his job title, his knowledge of MidFirst 

Bank's business practices, and his personal knowledge of Wallace's account. Kinders 

indicated that Wallace was in default on the mortgage and note, and specified the amount 

due and owing. In support of his affidavit, Kinders attached electronically stored copies of 

the mortgage and note. MidFirst Bank also filed a notice of recorded assignment of 

mortgage with a copy of the recorded assignment in order to demonstrate that the mortgage 

was assigned to MidFirst Bank prior to the filing of the complaint. 

{¶ 4} Wallace opposed MidFirst Bank's motion for summary judgment, arguing that 

Kinders lacked personal knowledge and that his affidavit failed to prove that the records 

relating to the Wallace account were kept in accordance with the policy to which he testified. 

Finally, Wallace argued that the trial court could not enforce the assignment of mortgage 

because it was not prepared by an attorney licensed to practice law in the state of Ohio. 

{¶ 5} The trial court granted summary judgment in favor of MidFirst Bank. Wallace 

now appeals that decision, raising a single assignment of error for review. 

{¶ 6} Assignment of Error No. 1: 
Warren CA2013-12-122

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{¶ 7} THE TRIAL COURT ERRED BY GRANTING PLAINTIFF-APPELLANT'S [SIC] 

MOTION FOR SUMMARY JUDGMENT. 

{¶ 8} Within this assignment of error, Wallace argues that the trial court erred by (1) 

"improperly relying on certain documents as business records of MidFirst [Bank] without a 

proper foundation being laid, rendering the documents inadmissible," and (2) "relying on an 

assignment of mortgage, a legal document, drafted by someone not admitted to practice law 

in Ohio." 

{¶ 9} Appellate review of a trial court's ruling on a motion for summary judgment is de 

novo. Bank of America, N.A. v. Jackson, 12th Dist. Warren No. CA2014-01-018, 2014-Ohio2480, ¶ 32. Civ.R.56(C) sets forth the conditions under which it is appropriate to grant 

summary judgment: (1) there are no genuine issues of material fact to be litigated; (2) the 

moving party is entitled to judgment as a matter of law; and, (3) when all evidence is 

construed most strongly in favor of the nonmoving party, reasonable minds can come to only 

one conclusion, and that conclusion is adverse to the nonmoving party. Zivich v. Mentor 

Soccer Club, Inc., 82 Ohio St.3d 367, 369-70 (1998). The party moving for summary 

judgment has the initial burden of producing evidence that affirmatively demonstrates the 

absence of a genuine issue of material fact. First Horizon Home Loans v. Sims, 12th Dist. 

Warren No. CA2009-08-117, 2010-Ohio-847, ¶ 19, citing Dresher v. Burt, 75 Ohio St.3d 280, 

292–93 (1996). If the moving party meets its burden, the nonmoving party "must set forth 

specific facts showing that there is a genuine issue for trial." Civ.R. 56(C). 

Business Records

{¶ 10} In order to be admissible, business records must be authenticated by evidence 

sufficient to support a finding that the matter in question is what its proponent claims. Evid.R. 

901. Pursuant to Evid.R. 901(B)(10), authentication of business records "is governed by 

Evid.R. 803(6)." Cent. Mtge. Co. v. Bonner, 12th Dist. Butler No. CA2012-10-204, 2013-
Warren CA2013-12-122

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Ohio-3876, ¶ 14, citing Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, ¶ 

9 (1st Dist.); Ohio Receivables, L.L.C. v. Dallariva, 10th Dist. Franklin No. 11AP-951, 2012-

Ohio-3165, ¶ 18. 

{¶ 11} To qualify for admission under Evid.R. 803(6), "a business record must 

manifest four essential elements: (i) the record must be one regularly recorded in a regularly 

conducted activity; (ii) it must have been entered by a person with knowledge of the act, 

event or condition; (iii) it must have been recorded at or near the time of the transaction; and 

(iv) a foundation must be laid by the custodian of the record or by some other qualified 

witness." Bonner at ¶ 13, citing State v. Glenn, 12th Dist. Butler No. CA2009-01-008, 2009-

Ohio-6549, ¶ 17; and State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 171. Even after the 

above elements are established, however, a business record may be excluded from evidence 

if "the source of information or the method of circumstances of preparation indicate lack of 

trustworthiness." Id. 

{¶ 12} In arguing that the records attached to Kinders' affidavit are inadmissible under 

Evid.R. 803(6), Wallace argues that while Kinders indicated how business records at MidFirst 

Bank are generally maintained, he failed to aver that the particular records at issue were 

maintained in such a manner. However, Kinders averred that he is "familiar with business 

records maintained by MidFirst Bank," and that he made his affidavit "based upon personal 

knowledge obtained from my personal review of such business records." Thus, Kinders has 

testified that the records at issue in his affidavit were "such records" as those regularly 

maintained in accordance with the policy to which he testified. Accordingly, Kinders' affidavit 

was sufficient to establish that he had personal knowledge of the matters averred therein, 

and if Wallace wished to contend otherwise, it was her responsibility to "submit" "an opposing 

affidavit setting forth the appropriate facts[.]" State ex rel. Corrigan v. Seminatore, 66 Ohio 

St.2d 459, 467 (1981). Wallace failed to do so. 
Warren CA2013-12-122

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Mortgage Assignment

{¶ 13} Finally, Wallace argues that the trial court erred in relying on a mortgage 

assignment that was not drafted by an Ohio-licensed attorney. 

{¶ 14} However, "[o]nly a party to a contract or an intended third-party beneficiary of a 

contract may bring an action on a contract in Ohio." Grant Thornton v. Windsor House, Inc., 

57 Ohio St.3d 158, 161 (1991); Cline v. Mtge. Electronic Registration Sys., Inc., 10th Dist. 

Franklin No. 13AP-240, 2013-Ohio-5706, ¶ 12. Ohio courts have routinely found that when a 

debtor or mortgagor is neither a party to, nor a third-party beneficiary of, the assignment of a 

mortgage, the debtor or mortgagor lacks standing to challenge the validity of the mortgage 

assignment between an assignor and an assignee. LSF6 Mercury REO Invests. Trust Series 

2008-1 c/o Vericrest Fin., Inc. v. Locke, 10th Dist. Franklin No. 11AP-757, 2012-Ohio-4499, ¶ 

28; Bank of New York Mellon v. Froimson, 8th Dist. Cuyahoga No. 99443, 2013-Ohio-5574, ¶ 

17-18. 

{¶ 15} Here, Wallace is neither a party to, nor a third-party beneficiary of, the 

assignment of mortgage at issue. Accordingly, Wallace lacks standing to challenge the 

validity of the assignment. 

{¶ 16} In light of the foregoing, having found that (1) Kinders sufficiently established 

that he has personal knowledge of the records at issue and that they were maintained in 

accordance with MidFirst Bank's policy for maintaining such records, and (2) Wallace lacked 

standing to challenge an assignment of the mortgage at issue, Wallace's sole assignment of 

error is overruled. 

{¶ 17} Judgment affirmed. 

S. POWELL and PIPER, JJ., concur.